Is Kenneth Dam working for Elliott Associates?

May 13, 2012

Kenneth Dam is an unusually reticent professor. Since he released his amicus brief in the case of Elliott vs. Argentina, I’ve phoned him and sent him multiple emails to two different addresses, but have received no reply at all. Which is odd, because he clearly feels very strongly about the case — strongly enough to enlist Kevin Reed, of the white-shoe law firm Quinn Emanuel Urquhart & Sullivan, to put together his brief and submit it to the Second Circuit.

Such services don’t come cheap: my guess is that Reed charged Dam well into six figures for his services.

So why would Dam spend hundreds of thousands of dollars to submit an amicus brief in this case, yet at the same time evince no interest in talking to the press about it? He hasn’t returned Bloomberg’s calls, either, and neither is he quoted in Michelle Celarier’s story in the NY Post. But Celarier has managed to come out and say what many of us suspected, when we first saw the brief:

Elliott Capital Management’s Paul Singer must be sweating it…

Singer has enlisted the support of ex-Treasury vet Kenneth Dam, who served under Ronald Reagan and was deputy secretary of the Treasury under George W. Bush, to write a “friends of the court” brief for Elliott in a case the US Court of Appeals for the Second Circuit is slated to hear later this month.

This wouldn’t be the first time that Elliott paid a venerable law professor to submit a brief in support of its case. But in this particular brief, there’s an unambiguous footnote:

Pursuant to Local Rule 29.1, Kenneth W. Dam states that he authored this brief and that it was not authored or funded by any party to this action.

On the off chance that you’re not familiar with Local Rule 29.1, it requires a disclosure statement under FRAP 29(c)(5), which in turn says that this footnote must indicate whether “a person — other than the amicus curiae, its members, or its counsel — contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person”. Since Dam identifies no such person, I would normally conclude that he paid the costs of preparing and submitting this brief himself.

But Michelle Celarier is a veteran and very well-sourced journalist, and if she says that Dam’s brief was commissioned by Elliott, I’m inclined to believe her.

It’s all very peculiar. Within the brief itself, Dam’s only declared interest is this:

Prof. Dam has a substantial interest in the outcome of this action because it presents issues involving the international financial markets, the role of international financial institutions, and U.S. international policymaking that he has written on and studied extensively.

Which might explain why he’s interested in the outcome of the action, but doesn’t come close to explaining why he’s willing to spend a very large amount of money attempting to influence the outcome of the action.

All of this could be cleared up, of course, very easily, if only Dam or Elliott were willing to answer some simple questions. But instead we get this:

Dam didn’t return a phone message and e-mail sent to his law school office seeking comment on the filing. Peter Truell, a spokesman for New York-based Elliott Management, declined to comment.

I first tried to ask Dam about this back on May 2, and then tried again on May 7. So far, I’ve heard nothing. So if anybody out there knows Ken Dam, and gets the opportunity to ask him a simple question, I’d be much obliged if you could ask him whether he’s working for Elliott. Then, if he says yes, ask him why he didn’t say so in his brief. And if he says no, ask him how much it cost to file this brief, and whether he personally paid the full sum. I’d be fascinated to learn what his answers are.


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